ALJDEC decisions subject to certification as final

06F-M1969-ROC · Registrar of Contractors · 2007-02-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 2007 APPEARANCES: Complainant Steven Owen appeared on his own behalf. Rocky Jones appeared on behalf of Respondent Rock Solid Wood Floors, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Rock Solid Wood Floors, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT 1. Rock Solid Wood Floors, Inc. (“Rock Solid”) is the holder of a Class C-08R license (No. 198394) issued by the Registrar of Contractors (“ROC”). Rocky Jones is Rock Solid’s qualifying party. 2. Complainant Steven Owen purchased wood flooring from Lumber Liquidators and was given the names of contractors to perform the installation. Rock Solid was one such contractor. On or about January 20, 2006, Mr. Owen contracted with Rock Solid for Rock Solid to install the wood flooring throughout the Owens’ home. The contract price was $2,200.00. Rock Solid performed the installation on January 25, 2006. 3. Shortly after the flooring was installed, the Owens noticed that the flooring in the kitchen area was cupping. The Owens contacted Rock Solid, but were dissatisfied with its response to the situation. Consequently, on April 10, 2006, Mr. Owen filed a complaint against Rock Solid with the ROC alleging the following: Wood flooring was not installed properly. The entire kitchen area is cuping (sic) and lifting up. We had a contract and the contractor will not complete the work and his work is now coming up.

4. ROC Inspector Ron Lamp investigated Mr. Owen’s complaint. 6. On May 3, 2006, Inspector Lamp conducted a jobsite inspection. Present for the inspection were Mr. and Mrs. Owen and Mr. Jones. 7. On May 4, 2006, following the jobsite inspection, Inspector Lamp issued a Corrective Work Order (“CWO”) under which the ROC gave Rock Solid 15 days to take corrective action as follows: “Contractor to take any necessary action to properly repair cupping floor situation and step in living room.” 8. Subsequent to issuing the CWO, Inspector Lamp retired and the case was assigned to Inspector Dennis Cook. 9. At hearing, Inspector Cook testified that he conducted a pre- hearing inspection on January 29, 2007. Mr. and Mrs. Owen and Mr. Jones were present for that inspection. Inspector Cook testified that during his pre-hearing inspection, he observed cupping areas, peaking at the joints, delamination in some areas, some movement in the floor planks in some areas, glue on the baseboards and at the base of the sliding door, slight damage to the travertine tile (chipping) at the fireplace hearth, that apparently occurred during Rock Solid’s attempts at corrective work, and a gap that exceeds 1/16” between the planks in front of the fireplace and that such gap is in excess of ROC standards. Inspector Cook testified that Rock Solid has not fully complied with the CWO. Inspector Cook opined that the deficiencies with the wood flooring installation are repairable, that remedial work is necessary, and that he would not be satisfied with the installation if it was his home. 10. Mr. Owen credibly testified that Rock Solid failed to perform its work at his home in a professional and workmanlike manner, that there has been a complete breakdown in the working relationship between the parties, that Mr. Jones has left “nasty” messages including curse words on the Owens’ voicemail, and that Mrs. Owen is uncomfortable with Mr. Jones. Mr. Owen submitted into evidence photographs depicting the deficiencies and damage done during Rock Solid’s work at his home, specifically, damaged door molding, glue on the baseboards, the sloppy cut line at the base of the cabinets that the kick boards will not cover, glue showing through the joints, cupping in the floor, chipping in the travertine tile by the fireplace hearth, and variation in color of the wood at the step to the sunken living room. See Exhibits 1 through 8. Mr. Owen credibly testified that the wood that was installed on the living room step was installed crooked, and that the staining of the wood is different from the rest of the floor. 11. Mr. Owen requested that any corrective work be performed by a licensed contractor other than Rock Solid. 12. Mr. Jones acknowledged that “some things definitely still need attention”, however, the majority of the deficiencies are minor. Mr. Jones testified that he “can’t work with these people” and that he “can’t please these people”. Mr. Jones testified that Rock Solid is willing to hire another contractor to perform the corrective work, however, the parties cannot agree to the scope of that work. Mr. Jones testified that the Owens believe that more work needs to be done than is actually necessary. CONCLUSIONS OF LAW In this proceeding, Mr. Owen bears the burden to prove, by a preponderance of the evidence, that Rock Solid is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its September 28, 2006 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Mr. Owen has met his burden of proof as to all three of the ROC charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Rock Solid with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes that Mr. Owen demonstrated that Rock Solid failed to perform its work at his home in a professional and workmanlike manner as evidenced by the overall condition of the floor and the corollary damage (including the chipped tile and glue on the baseboards). Therefore, the Administrative Law Judge concludes that Rock Solid is in violation of A.R.S. § 32- 1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Rock Solid a CWO directing it to accomplish specified remedial work within a stated period of time. The evidence of record established that although Rock Solid initially attempted to comply with the terms of the CWO, it failed to accomplish substantial compliance as evidenced by the deficient condition of the floor and corollary damage. Therefore, the Administrative Law Judge concludes that Rock Solid is in violation of A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based upon the credible evidence of record, that Rock Solid committed wrongful acts that substantially injured Mr. Owen by failing to properly install the flooring as evidenced by the deficiencies in the flooring, by failing to comply with the CWO, and by causing corollary damage. Therefore, the Administrative Law Judge concludes that Rock Solid is in violation of A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Rock Solid’s license. 7. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Rock Solid’s Class C-08R license. 8. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Rock Solid’s license without providing a condition to reduce or eliminate same. Although the ROC normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein and the state of the relationship between the parties, Rock Solid should not be allowed to perform any further work at the Owens’ home. 9. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Rock Solid’s Class C-08R license subject to the condition that Rock Solid can avoid such suspension by hiring at its sole expense another properly licensed contractor, to be chosen by Mr. Owen, to perform the corrective work as delineated in the CWO and by Inspector Cook’s findings during the pre-hearing inspection as delineated in Finding of Fact Number 8 above, and any corollary damage that resulted from Rock Solid’s attempts at corrective work, including the cut lines at the base of the cabinets. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Rock Solid’s Class C-08R license (No. 198394) shall be suspended until the ROC receives written proof that Rock Solid has within thirty days of the effective date of the Order entered in this matter, hired at its sole expense another properly licensed contractor, to be chosen by Mr. Owen, to perform the corrective work as delineated in the CWO and by Inspector Cook’s findings during the pre-hearing inspection as delineated in Finding of Fact Number 8 above, and any corollary damage that resulted from Rock Solid’s attempts at corrective work, including the cut lines at the base of the cabinets. If the ROC receives written proof that Rock Solid has complied with the foregoing conditions on or before the date specified above, then the above provided license suspension shall not take place and the Citation and Complaint in Case No. M06-1969 shall be closed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, February 12, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of February, 2007, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826